SPECIAL REPORT: New CVSA criteria would put drivers who can’t speak English out of service

| Thursday, March 03, 2005

A new addition to the Commercial Vehicle Safety Alliance Out-of-Service Criteria would allow enforcement officers to place truck drivers out of service if they were unable to "communicate sufficiently" in the country in which they are operating.

The new out-of-service provision, which has been debated for some time, was recently added to the CVSA criteria and becomes effective April 1. It affects commercial drivers operating in the United States, Canada and Mexico.

The new addition to the criteria says:

"In recognition of the three countries' language differences, it is the responsibility of the driver and the motor carrier to be able to communicate in the country in which the driver/carrier is operating so that safety is not compromised. Driver is unable to communicate sufficiently to understand and respond to official inquiries and directions. . Place driver out of service."

Rick Craig, director of regulatory affairs for the Owner-Operator Independent Drivers Association, said that previously, nothing in CVSA's out-of-service criteria allowed enforcement officers to place a driver who could not speak or understand English while in the United States out of service. However, Part 391.11 of the Federal Motor Carrier Safety Regulations require that drivers be able to read and speak English.

OOIDA, he said, has pushed to add violations of the English-speaking requirement to the out-of-service criteria for some time, but political considerations had prevented it from being adopted by CVSA.

"The NAFTA agreement, Mexico being a member of CVSA, French-speaking Quebec, the fear of legal action, were just some of the arguments in opposition to adopting the change," he said.

"There has also been an ongoing concern that if the existing FMCSA rule were enforced, Mexico, or even Quebec, could retaliate against U.S. drivers unable to speak Spanish or French. Since Mexico and Canada are CVSA members, and both countries enforce the out-of-service criteria, that has become reality."

However, because Canada is officially bilingual, Craig said the issue "primarily hinges around Mexico."

The issue of placing non-English speaking drivers out of service in the United States has come up several times in the past. The Driver and Traffic Enforcement Committee debated it a few years ago at a CVSA conference.

The issue came up again at a recent meeting, and Craig said the new criteria received heavy support from members of the law-enforcement community involved in CVSA. Of particular concern to those members was the ability of officers to communicate during inspections. Simply put, Craig said officers "don't know what to do with the drivers. There's nothing in the out-of-service criteria."

"Many officers view it more as an inspector safety problem, because their inspectors must get under the equipment to check brakes, chassis, things like that," he said. "They're afraid that if the driver misunderstands the instructions, they may get an inspector run over."

The criteria could have another effect. If states strictly enforce the new provision, it could affect the entry of Mexican drivers under NAFTA. Carriers cannot afford to have large numbers of drivers placed out of service, and the possibility that drivers with limited English skills could be placed out of service may lead carriers to take another look at hiring drivers from foreign countries.

Craig stressed that the rule was not targeted at one language or one group of drivers. Different parts of the United States experience concentrations of different nationalities of non-English-speaking drivers. For example, the Operation Safe Road investigation in Illinois focused on drivers who spoke Eastern European languages.

Craig again stressed that English-speaking drivers operating in Mexico and Quebec could also face being sidelined if they are unable to communicate with an inspector.

CVSA members includes state, provincial and federal officials responsible for enforcing motor carrier safety laws in the United States, Canada and Mexico. Its membership includes all 50 states, the District of Columbia, all 13 Canadian provinces and territories, the country of Mexico, as well as several U.S. territories.

In addition to government officials - such as representatives from departments of transportation, public utility and service commissions, and state and provincial police - the group includes trucking associations, truck and bus companies, insurance companies, manufacturers, research organizations, commercial vehicle drivers and others.

For years, those groups have worked together to develop minimum standards for commercial vehicle inspections and uniform out-of-service criteria.

What effect the new criteria will have remains to be seen. State, provincial and territorial inspectors could have difficulty in interpreting the new provision - for example, what level of language skill constitutes "communicating sufficiently." If the driver and inspector can communicate through hand signals, that could qualify, or if the U.S. inspector can speak the driver's language, that could also qualify.

Craig said OOIDA views this as one of the major flaws of the new language in the criteria that, if it were fixed, would solve the problem of non-English speaking drivers in the United States once and for all.

But Craig said it does finally give U.S. inspectors a tool to deal with non-English speaking drivers.

"Each jurisdiction signs an MOU (memorandum of understanding) with CVSA that they will follow the out-of-service criteria, so with this recent change they've got their tool now. They can place that driver out of service."

If that happens, he said, it will be up to the carriers to replace the driver with one who can understand and speak English.

"This does not solve it all, that's for sure," Craig said. "But it does give inspectors a long needed tool. Now they now have an enforcement action they can take."